David Souter

Timothy K. Lewis, a George H.W. Bush nominee who served on the Third Circuit Court of Appeals from 1992 through 1999, offers some perspective on how judicial confirmations were handled before they became mired in hyper-partisan gridlock:

Nineteen years ago, in the fall of 1992, I was nominated by President George H. W. Bush for a seat on the United States Court of Appeals for the Third Circuit. My confirmation hearing lasted one hour. In fact, I had no time to prepare for it. As a federal district judge, I was in the courtroom, charging a jury, when my secretary burst in with the news that my Senate hearing was to be the very next day. That is how much notice I had. When the vote was called only a few days later, I was unanimously confirmed.

Don’t get me wrong. This is not to celebrate me. It is to reflect on a better time for our politics and ask how things went so wrong. Among the 192 Article III judges confirmed during the elder Bush’s presidency, only David Souter and Clarence Thomas faced confirmation battles (with Thomas undergoing a very difficult confirmation battle). But, of course, they were under consideration for the Supreme Court.

Compare that now with the Obama administration. The president has had only 96 Article III nominations confirmed and 55 others remain in limbo, awaiting Senate action. They are stuck in a process that should by all constitutional standards remain rigorous, but shouldn’t it also be productive? In the same period of time, George W. Bush had 322 confirmed nominees and Bill Clinton had 372 confirmed.

The Obama administration was slow out of the gate on this one – nominations trickled forth in the early days of the administration when the President’s team should have been well-prepared with the names of nominees. But a considerable amount of the fault for this also has to be laid at the feet of Republicans who have made it a badge of honor to frustrate this President, himself a man of the law, from shaping the federal courts he inherited from George W. Bush. If you doubt this conclusion, reflect for a moment on the Senate minority leader’s comment shortly before the 2010 mid-term election when he said that the top – top — political priority over the next two years should be to deny President Obama a second term in office. Really, Senator? So where on the priority list do we put conducting the Senate’s constitutional business?

The gridlock in judicial nominations has been one of the less-noticed bits of collateral damage from the congressional GOP’s scorched-earth policy. But it has caused very real harm to Americans seeking justice in courts around the country -- there are currently 37 judicial emergencies in the federal courts in areas where the sitting judges are too overworked to provide prompt access to justice. Last week, Senate Republicans made an exception to their gridlock rule to fill the most publicized of those emergencies: the seat of Arizona Judge John Roll, who was murdered in the Phoenix shooting that critically injured Rep. Gabrielle Giffords. Roll had stopped by the Giffords event to tell the congresswoman about the urgent need to fill vacancies on the court.

Senate Republicans’ commitment to delay was made particularly clear when they refused to allow a floor vote on 20 pending nominees, most of whom had advanced with no opposition. The Senate GOP’s foot-dragging on judicial nominees is clearly meant to hobble the president’s attempts at basic governance and preserve the dominance of conservative George W. Bush-appointed judges. But it also amounts to the shirking of a basic duty of the Senate: to fill the judiciary with capable, non-politically-motivated judges.

Sen. John Cornyn, in his boilerplate remarks about the “judicial activism” conservatives like to associate with Elena Kagan, attempted to throw the Solicitor General’s own words back at her. Kagan, Cornyn insisted, would not rely on the “Constitution ratified by the American people and the laws passed by Congress,” but rather that she would solve tensions “between her Constitutional values” using “her prudence and judgment.” (He demonstrated his contempt for “prudence” and “judgment” by spitting the words out in disgust).

Question: In Confirmation Messes, Old and New, 62 U. Chi. L. Rev. 919, 932 (1995), you wrote that “many of the votes a Supreme Court Justice casts have little to do with technical legal ability and much to do with conceptions of value.”

a. Please explain in greater detail what you meant in this statement.

Response: I was referring to constitutional values, by which I mean the fundamental principles articulated and embodied in our Constitution. In some cases, constitutional values point in different directions, and judges must exercise prudence and judgment in resolving the tension between them. In doing so, judges must always look to legal sources—the text, structure, and history of the Constitution, as well as the Supreme Court’s precedents—not to their own personal values, political beliefs, or policy views.

Kagan wasn’t talking about tension in her own values—she was talking about the tension inherent in the values of the Constitution. For more on that point, Cornyn might want to read former Justice David Souter’s excellent explanation of this principle, or even just sit down and read a few recent Supreme Court cases, which typically get to the Court precisely because they embody hard-to-resolve tensions between constitutional values.

He might also want to re-watch Kagan’s debunking of the John Roberts doctrine of the judge-as-umpire, in which she patiently explains that “judging requires judgment':

You do have to feel for the big corporations who were being discriminated against before the Supreme Court decided they could spend unlimited amounts of money in elections, right? Jeff Sessions, for one, is standing up for corporate underdogs who have fallen victim to moral injustice. Talking Points Memo reports:

Last night, elaborating on his criticisms of former Supreme Court Justice Thurgood Marshall, Sessions made the unusual comparison of Citizens United v. FEC to Brown v. Board of Education of Topeka.

"[Marshall] was right on Brown v. Board of Education. It's akin in my view to the Citizen's United case. The court sat down and we went back to first principles--What does the Constitution say? Everybody should be equal protection of the laws," Sessions told me after a Senate vote last night.

"Is it treating people equally to say you can go to this school because of the color of your skin and you can't?" Sessions asked rhetorically. "We've now honestly concluded and fairly concluded that it violates the equal protection clause."

Come again?

Let’s break this down into a few points that I guess we shouldn’t assume are obvious:

Brown v. Board of Education ended the systematic segregation of the American school system. Citizens United v. FEC struck down a law that didn’t let corporations spend as much as they wanted to on electioneering communications.

The GOP has spent a large part of the past two days attacking Justice Marshall for what they call his “activist” judicial philosophy. They define that philosophy as an insufficient reverence for the Constitution as originally written and intended.

Brown v. Board of Ed (which Marshall argued) is a classic example of a case in which the Supreme Court interpreted part of the Constitution—the 14th Amendment—in a way at odds with the original intent of its writers, but in line with evolving social mores and values. Elena Kagan made that very point herself this morning, as did former Justice David Souter a few weeks ago.

Sessions says that the same philosophy led to Brown v. Board and Citizens United, but continues to slam Thurgood Marshall, the architect of the Brown argument, while praising the results of Citizens United.

The confusing logic aside, the main point here is that Sessions just compared limits on corporate spending in elections with systematic racial segregation. This is the top Republican on the Senate Judiciary Committee. And abstract arguments about judicial philosophy aside, that’s just appalling.

Well, this is a nice change. In her first few minutes of testimony, responding to questions from Judiciary Chairman Patrick Leahy, Supreme Court nominee Elena Kagan spoke about the Constitution as an enduring document that can be amended and interpreted in a changing world.

The founders recognized that “circumstances and the world would change,” Kagan said. They wrote about “unreasonable” search and seizure, but didn’t write a manual on what counts as unreasonable. “They didn’t do that because of this wisdom they had, because they knew the world was going to change,” she said.

Kagan outlines two varieties of change in constitutional interpretation: the formal amendment process and changing mores. She used as an example the passage of the 14th amendment in 1868, which established equal protection under the law, and the 1954 decision in Brown v. Board, which interpreted the amendment in a way never imagined in 1868 in order to desegregate American schools.

It’s nice to hear that Kagan won’t be engaging in the flawed “balls and strikes” analogy—we might end up hearing a conversation about what the Supreme Court actually does.

[Required reading: former Justice David Souter’s recent speech on this very subject].

A couple of weeks ago, I wrote a post highlighting some really excellent articles that have come out in response to former Supreme Court Justice David Souter’s recent takedown of the highly flawed (to put it mildly) analogy of the Justice as a sort of robotic constitutional umpire. Since then, the debate as continued, and I wanted to point out a few more that make for great reading going into Elena Kagan’s confirmation hearings next week.

Donald Ayer, who was a deputy solicitor general in the Reagan Administration wrote an op-ed in the Washington Post explaining why the Supreme Court’s work can’t be done by a constitutional calculator:

Here's the rub: In nearly all the high court's cases, doubt exists not because the half or so of judges who decided the issue are stupid, don't get it or otherwise made some identifiable mistake. Rather, doubts exist because there are substantial persuasive arguments on both sides that cannot be dismissed as invalid or wrong. These cases must be resolved by deciding which collection of arguments is the more compelling; the justices make decisions by choosing to give priority to one set of contentions or another. This is true of many constitutional cases, both because the Constitution is often unspecific and, as retired Justice David Souter recently observed, because its splendid generalities, such as equality and liberty, are sometimes in tension with one another. It is also true in the much greater number of more routine cases, such as where the words of a statute leave doubt about its coverage or effect.

The absence of any dialogue on substantive law at these hearings is regrettable, but the political theater of discussing judging as mere law-to-fact application is truly alarming in that it goes to the heart of the public's understanding of what it is Supreme Court justices actually do. That's why Kagan needs to talk to the American people honestly next week about the job for which she is applying and why she is so qualified to get it.

And, in the New York Times Magazine, Noah Feldman calls for a new progressive vision of the Constitution that deals with macroeconomics just as much as civil rights:

Why does the absence of this vision constitute a crisis for liberals? The answer is that new and pressing constitutional issues and problems loom on the horizon — and they cannot be easily solved or resolved using the now-familiar frameworks of liberty and equality. These problems cluster around the current economic situation, which has revealed the extraordinary power of capital markets and business corporations in shaping the structure and actions of our government. The great economic and political challenges of our present decade — salvaging and fixing financial institutions, delivering health care, protecting the environment — have major constitutional dimensions. They require us to determine the limits of government power and the extent to which the state can impinge on collective and individual freedoms. Progressive constitutional thinkers, so skilled in arguing about social and civil rights, are out of practice in addressing such structural economic questions.

A few weeks ago, former Supreme Court Justice David Souter delivered a call to arms against the misguided theory of “constitutional originalism” that has dominated recent debates on the Supreme Court. “The Constitution is no simple contract,” Souter said, “Not because it uses a certain amount of open-ended language that a contract draftsman would try to avoid, but because its language grants and guarantees many good things, and good things that compete with each other and can never all be realized, all together, all at once.”

Souter’s argument has started a robust and refreshing conversation about keeping faith with the Constitution …. and debunking the notion of justices as constitutional umpires who have to simply stand at the plate and call objective balls and strikes.

Constitutional law professor Alain L. Sanders weighed in today with an interesting take on what a literal adherence to the Constitution as originally written —sure to be invoked in the upcoming hearings on Elena Kagan’s nomination— would mean:

The political oratory will be enticing to many, and sound astute, learned and even well-grounded. But much of it will be misleading, wrong-headed, and unsupported by logic, history, or the principles of the Constitution. A simple examination of the Senate confirmation proceedings themselves illuminates the fallacies of the conservative assault.

Sitting on the Senate Judiciary panel will be California's Dianne Feinstein and Minnesota's Amy Klobuchar. To any and all true-blue strict constructionists, the presence of these two women legislators ought immediately to sound the alarm of unconstitutionality and invalidate the entire confirmation process. The Constitution states clearly, directly and consistently throughout its many provisions that federal officials are to be men.

Sanders’ argument brought to mind some other great riffs on Souter’s speech that we’ve seen over the past couple of weeks. These articles are all worth a read:

The Constitutional Accountability Center’s Doug Kendall and UVA professor Jim Ryan argued that adherence to the full text and history of the Constitution – including all of its amendments - is something that progressives can and should embrace:

We live in an era thick with conservative nostalgia for the "original" Constitution and the ideas of our founding, even when those ideas have been repudiated or modified by subsequent constitutional amendments. Kagan would be doing the entire nation as well as the Constitution itself a service if she would use the confirmation process to express and explain her commitment to follow the Constitution—all of it. If Kagan does talk about the text and history of the Constitution, as well as the role of the court, it could go a long way toward recalibrating the current national debate on the judiciary and the Constitution.

So, as we look forward toward Elena Kagan's confirmation hearings, the question isn't whether she will use the opportunity of her hearings to defend living constitutionalism or to debunk originalism. That is probably too freighted a discussion, and one that no progressive can possibly win in this day and age. The question I would ask is why it's so fashionable for nominees to suggest that the hard work of judging is simple; that the Constitution is no more complicated than the instructions for assembling an Ikea end table; and that the reason they are perfectly qualified for the job is that, well, they can read. What does it say about the court as an institution that everyone who goes through the interview process must downplay the difficulty of the job?

And Adam Serwer of the American Prospect, responding to Lithwick, calls originalism out as “a great hustle”:

Lithwick notes that the theory of orginalism assumes a "nonexistent universe in which all cases are easy and all the constitutional directives are perfectly clear." But to the originalists, it is always perfectly clear: The answer is whatever they want it to be, all other conclusions are inherently illegitimate. That's what makes originalism such a great hustle -- its arbitraryness is masked by nigh-bulletproof rhetorical argument -- that its adherents are simply "applying the law as written." In order to attack their reasoning, you first have to dismantle the idea that there are no inherent tensions within the Constitution that need to be resolved in order to reach a clear ruling. In a way, originalists are a bit like religious fundamentalists who insist on following their religious texts literally but in practice only select those that fit their prevailing cultural sympathies, dismissing others as heretics and unbelievers.

We’re hoping that the weeks since Souter’s commencement address are just the beginning of a new discussion about the Constitution and the importance of the Supreme Court in all of our lives - a discussion that should be at the center of the debate on Kagan’s confirmation.

The Constitutional Accountability Center has just released a statistical study of the current Supreme Court’s pro-corporate voting patterns. And guess what? The numbers back the trend that’s anecdotally hard to miss.

CAC’s statistical study tests empirically the idea that the conservatives on the Roberts Court tend to side with corporate interests. Our study examined every opinion released by the Roberts Court since Justice Samuel Alito began participating in decisions, and in which the U.S. Chamber of Commerce was either a party or an amicus curiae — a universe of 53 cases. This study reveals an overall success rate for the Chamber of 64% (34 victories in 53 cases), and a success rate of 71% in cases decided by a narrow (five-Justice) majority. The Court’s conservatives (Chief Justice Roberts and Justices Antonin Scalia, Samuel Alito, Clarence Thomas, and Anthony Kennedy) tend to vote together in their support for the Chamber, while the Court’s moderate/liberal bloc (including former Justice David Souter, who was on the Court for most of these rulings) was more centrist, casting only 41% of its votes in favor of the Chamber.

These data strongly support the proposition that there is a strong ideological component to the Justices’ rulings in business cases, with the Court’s conservatives frequently adopting the Chamber’s position. In one particularly startling finding, Justice Alito, since joining the Court, has never cast a vote against the Chamber of Commerce’s position in a closely divided case. This statistical evidence supports the charge by President Obama and Chairman Leahy that the Court’s conservative majority has a disturbing pro-corporate tilt, and this reality should provide an important frame for General Kagan’s upcoming confirmation hearing.

Jeff Sessions is at it again. In a statement following the release of tens of thousands of pages of documents related to Supreme Court nominee Elena Kagan on Friday, Sessions concluded:

Kagan’s memos unambiguously express a leftist philosophy and an approach to the law that seems more concerned with achieving a desired social result than fairly following the Constitution. Ms. Kagan has never been a judge, and only briefly practiced law—spending far more time as a liberal advocate than a legal practitioner.

Sessions, the top Republican on the Senate committee that will grill Kagan this summer, has apparently decided to stick to the blanket accusation of “judicial activism”—or, as it is now known, “outcomes-based” judging. The idea that conservative judges read the Constitution while liberal judges pull ideas out of thin air was spectacularly disproved by the Roberts Court’s ruling in Citizens United v. FEC, and recently received a thorough takedown from former Justice David Souter. Yet Sessions continues to peddle nonsense about progressive appointees caring more about a “social result” than the Constitution.

And, by the way, when Sessions accuses Kagan of lacking judicial experience, he walks right into a well-documented double standard.

In a new piece for the Huffington Post, People For’s Michael B. Keegan argues that the confirmation process for Elena Kagan provides progressives with the perfect opportunity to take back a debate that the Right has dominated for far too long:

As Slate's Dahlia Lithwick has pointed out, the Republican message machine has managed to convince America at large that only two kinds of Justices exist: rigorous conservatives who scrupulously apply the original intent of the Constitution, and carefree liberals who flaunt the law to rule for whichever party their big, soft hearts prefer. It's a myth, but it didn't spring up from nowhere. It's the direct result of a concerted effort pushed by conservative ideologues like Ed Meese and supported by Ronald Reagan, George Bush, and eventually the entire GOP machine.

For decades, this campaign has paid enormous dividends to the Right, with ultra conservative judges frustrating progressive goals and allowing elected conservatives to trample our Constitution. But over the last few years, a series of decisions by the Roberts Court have exposed its flaws and given progressives an opening to take back the conversation.

In his commencement address at Harvard last week, former Supreme Court Justice David Souter offered up an eloquent and thorough debunking of the popular conservative delusion of constitutional “originalism.”

At issue is "originalism," an approach to reading the Constitution whose seeming precision has given conservatives a polemical advantage over the liberals' "Living Constitution" idea that appears to let judges say our founding document means whatever they want it to mean.

Justice Antonin Scalia, the court's leading orginalist, summarized his opponents' attitude toward the Constitution with four words: "You know, it morphs."

Now, thanks to Souter's commencement address at Harvard last week, Scalia's critics have fighting words of their own. Souter, who did not mention Scalia by name, underscored "how egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments."

The problem is not only that "constitutions have a lot of general language in them in order to be useful as constitutions," but also that the U.S. Constitution "contains values that may very well exist in tension with each other, not in harmony."

This means that "hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another."

Souter focused on the example of Brown v. Board of Education, the 1954 decision that declared segregated schools unconstitutional. "For those whose exclusive norm of constitutional judging is merely fair reading of language applied to facts objectively viewed,” he said, “Brown must either be flat-out wrong or a very mystifying decision.”

With everyone talking about the retirement of Justice David Souter, the Radical Right’s propaganda machine is set to max.

Right Wing Watch is reporting on the Right’s reaction. One of the more laughable claims comes from Wendy Long of the Judicial Confirmation Network:

The current Supreme Court is a liberal, judicial activist court. Obama could make it even more of a far-left judicial activist court, for a long time to come …

Calling the current Court liberal is like calling Mitt Romney consistent – you can’t say it with a straight face. In fact, no less an authority than Justice John Paul Stevens has pointed out that “every judge who’s been appointed to the court since Lewis Powell has been more conservative than his or her predecessor,” with the possible exception of Justice Ginsburg.

But, for the sake of argument, let’s review some of the highlights of the current “liberal” Supreme Court.

In order to achieve their desired ideological results, the Far Right justices have recklessly toppled precedents, or even ignored them while pretending not to, with alarming frequency. For example, the restrictive federal abortion ban upheld by the Roberts Court was essentially identical to one the Court had struck down before Roberts and Alito joined the bench. Unfortunately, extreme Right Wing ideology trumped the rule of law.

Voting rights have also come under attack. The Roberts Court upheld the constitutionality of the most restrictive voter ID law in the country, an Indiana law requiring people to present a currently valid, government-issued photo ID in order to vote. This imposes a substantial burden on the elderly who don’t drive, college students, and the poor who don’t own cars. Indiana was unable to identify a single case of in-person voter fraud occurring in its history. That didn’t stop the Roberts Court from upholding a restriction that kept many Americans from being able to go to the polls on Election Day and cast a vote.

Even our very access to the courts has come under attack from the “liberal” Supreme Court.

Lilly Ledbetter was a victim of sex discrimination effectively barred from the courthouse. Late in her career, she learned that she had, over the years, been subjected to salary discrimination on the basis of her sex, and she sued. A jury found that she had been illegally discriminated against. Yet a 5-4 Right Wing majority held that she should have sued within 180 days of the initial discriminatory conduct—even though she didn’t learn that she was being discriminated against for more than a decade.

The Court also closed the courthouse door in Riegel v. Medtronic, holding that patients injured by a defective medical device cannot sue for damages for violations of state common law if it was approved for marketing by the Food and Drug Administration and made to the agency’s specifications. To reach this result, the Court had to interpret a federal law in a manner directly contrary to how its Senate sponsor said it was intended.

Keith Bowles was yet another victim denied his day in court. After Bowles was denied relief in federal district court, the judge informed him that he had 17 days to file an appeal. Unbeknownst to him, the rules really gave him only 14 days. So when Bowles, relying on the federal judge, filed on day 16, a narrow 5-4 Supreme Court majority said that he had filed too late. In so doing, the Court majority overruled clear and principled precedent that protected people in his situation. In dissent, Justice Souter correctly wrote that “it is intolerable for the judicial system to treat people this way, and there is not even a technical justification for this bait and switch.”

The danger from right-wing justices was clear in Boumediene v. Bush, a case related to the then-President’s claim of virtually unlimited executive powers to conduct the war on terror. The case involved the constitutionality of the Military Commissions Act of 2006, which eliminated federal court jurisdiction over habeas corpus claims by certain foreign detainees. The Court rebuked President Bush’s vision of the presidency as an office of limitless power and declared that the president of a free nation cannot simply lock people up and throw away the key like some third-world dictator. Chillingly, with Chief Justice Roberts and Justices Alito, Scalia, and Thomas dissenting, the case was decided by a single vote, 5-4. One more hard-right justice on the Court, and the decision would likely have gone the other way.

That’s why it’s crucial to have justices who are committed to our core constitutional values of justice and equality under the law.

It is of the utmost importance that Justice Souter be replaced by a powerful advocate for our Constitution—a justice in the mold of great jurists like Thurgood Marshall and William Brennan. Our nation cannot afford anything less.

Ending months of speculation, several news outlets reported last night Supreme Court Justice David Souter is planning to retire at the end of the term, after 19 years on the bench. People For the American Way released a statement expressing gratitude Justice Souter’s years of service to the Court, and called on President Obama to nominate “someone who can continue his work to defend our personal freedoms and ensure that every person has equal access to justice.”

On the campaign trail, then-Sen. Obama, a former constitutional law professor, told Wolf Blitzer of CNN “I I think that my first criteria is to make sure that these are people who are capable and competent, and that they are interpreting the law. And, 95 percent of the time, the law is so clear, that it's just a matter of applying the law. I'm not somebody who believes in a bunch of judicial lawmaking.” An excerpt from the transcript:

What you're looking for is somebody who is going to apply the law where it's clear. Now, there's going to be those 5 percent of cases or 1 percent of cases where the law isn't clear. And the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings. …

That's been its historic role. That was its role in Brown vs. Board of Education. I think a judge who is unsympathetic to the fact that, in some cases, we have got to make sure that civil rights are protected, that we have got to make sure that civil liberties are protected, because, oftentimes, there's pressures that are placed on politicians to want to set civil liberties aside, especially at a time when we have had terrorist attacks, making sure that we maintain our separation of powers, so that we don't have a president who is taking over more and more power.

I think those are all criteria by which I would judge whether or not this is a good appointee.

Well put, Mr. President. November’s election results were a mandate to President Obama to appoint judges committed to justice, equality, and opportunity for all Americans.

Soon after the election, People For the American Way Foundation hosted a panel called “Beyond the Sigh of Relief: Justices in the Mold of Marshall and Brennan.” It’s newly relevant, so take a look.